Kerala High Court
John Thomas vs The Divisional Manager on 11 March, 2025
M.A.C.A. No. 1287/2019 & connected : 1 :
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2025:KER:20442
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 11TH DAY OF MARCH 2025 / 20TH PHALGUNA, 1946
MACA NO. 1287 OF 2019
AWARD DATED 18.09.2018 IN OP(MV) NO.921 OF 2013 OF ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT/3rd RESPONDENT:
NATIONAL INSURANCE CO.LTD.,
DIVISIONAL OFFICE, KAYAMKULAM-690 502, REPRESENTED BY ITS
AUTHORIZED OFFICER, REGIONAL OFFICE, OMANA BUILDING,
M.G.ROAD, KOCHI-35.
BY ADVS.
SRI. GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
RESPONDENTS/CLAIMANTS:
1 JOHN THOMAS,
S/O. Y.THOMASKUTTY, KUMARACHEMPARAMPIL, MOLY VILLA,
VATTAKARIKKOM, THINKALKARIKKOM P.O., KULATHUPUZHA,
KOLLAM - 691 310.
2 SHAUN JOHN (MINOR)
S/O JOHN THOMAS, KUMARACHEMPARAMPIL, MOLY VILLA,
VATTAKARIKKOM, THINKALKARIKKOM P.O., KULATHUPUZHA,
KOLLAM - 691 310.
3 SHREYA JOHN (MINOR)
D/O JOHN THOMAS, KUMARACHEMPARAMPIL, MOLY VILLA,
VATTAKARIKKOM, THINKALKARIKKOM P.O., KULATHUPUZHA, KOLLAM.
(THE FIRST RESPONDENT IS REPRWSENTED BY Y.THOMASKUTTY,
S/O. YOHANNAN, KUMARACHEMPARAMPIL, MOLY VILLA,
VATTAKARIKKOM, THINKALKARIKKOM P.O., KULATHUPUZHA, KOLLAM.
AS A POWER OF ATTORNEY HOLDER AND PETITIONER NOS.2 AND 3
REPRESENTED BY THE ABOVE Y.THOMASKUTTY AS NEXT FRIEND)
M.A.C.A. No. 1287/2019 & connected : 2 :
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2025:KER:20442
4 ANNAMMA ABRAHAM @SANTHAMMA
W/O. ABRAHAM MATHEW, PALAVILAYIL PUTHEN VEEDU, MANAKKALA
P.O., ADOOR - 691 551.
R1 TO R3 BY ADV. SRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
06.03.2025, ALONG WITH M.A.C.A NO. 2853 OF 2019, THE COURT ON
11.03.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No. 1287/2019 & connected : 3 :
case
2025:KER:20442
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 11TH DAY OF MARCH 2025 / 20TH PHALGUNA, 1946
MACA NO. 2853 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 18.09.2018 IN OP(MV) NO.921 OF
2013 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANTS/PETITIONERS:
1 JOHN THOMAS, AGED 43 YEARS, S/O. Y. THOMASKUTTY,
KURACHEMPARAMBIL, MOLY VILLA, VATTAKARIKKOM,
THINKALKARIKKOM P.O, KULATHUPUZHA, KOLLAM.
2 SHAUN JOHN, AGED 13 YEARS, S/O. JOHN THOMAS, MINOR,
KURACHEMPARAMBIL, MOLY VILLA, VATTAKARIKKOM,
THINKALKARIKKOM P.O, KULATHUPUZHA, KOLLAM.
3 SHREYA JOHN, AGED 8 YEARS
D/O. JOHN THOMAS, MINOR, KURACHEMPARAMBIL, MOLY VILLA,
VATTAKARIKKOM, THINKALKARIKKOM P.O, KULATHUPUZHA, KOLLAM.
(ALL THE APPELLANTS REPRESENTED BY Y. THOMASKUTTY, S/O.
YOHANNAN, AGED 71 YEARS, KURACHEMPARAMBIL, MOLY VILLA,
VATTAKARIKKOM, THINKALKARIKKOM P.O, KULATHUPUZHA, KOLLAM.
AS THE POWER OF ATTORNEY HOLDER OF THE 1ST APPELLANT AND
NEXT FRIEND.
4 ANNAMMA ABRAHAM @ SANTHAMMA,
AGED 6 YEARS, W/O. ABRAHAM MATHEW, PLAVILAYILPUTHENVEEDU,
MANAKKALA P.O, ADOOR.
BY ADV A.N.SANTHOSH
RESPONDENT/3RD RESPONDENT:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, NELSON
COMPLEX, PUTHIYIDOM, P.B NO. 60, KAYAMKULAM-690 502.
BY ADVS.
GEORGE CHERIAN (SR.)
K.S.SANTHI
LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
06.03.2025, ALONG WITH MACA.1287/2019, THE COURT ON 11.03.2025 DELIVERED
THE FOLLOWING:
M.A.C.A. No. 1287/2019 & connected : 4 :
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JOHNSON JOHN, J.
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M.A.C.A No. 1287 & 2853 of 2019
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Dated this the 11th day of March, 2025.
JUDGMENT
These appeals are filed by the 3rd respondent insurance company
and the claim petitioners challenging the quantum of compensation fixed
by the Tribunal as per award dated 18.09.2018 in O.P.(MV) No. 921 of
2013 on the file of the Motor Accident Claims Tribunal, Pathanamthitta.
2. The petitioners are the legal heirs of Smt. Shiby Abraham, who
died in a motor vehicle accident. According to the petitioners, on
09.05.2013, while the deceased was travelling as pillion rider in a
motorcycle ridden by her father Abraham, lorry driven by the 1 st
respondent in a rash and negligent manner caused to hit the motorcycle
and thereby, the rider and the pillion rider fell own and sustained serious
injuries and subsequently, succumbed to their injuries. The 2nd
respondent is the owner of the offending vehicle and 3 rd respondent is
the insurer.
3. The Tribunal jointly considered O.P.(MV) Nos. 920 and 921 of
2013 and from the side of the petitioners, PW1 examined and Exhibits
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A1 to A38 were marked and no evidence adduced from the side of the
respondents.
4. The Tribunal arrived at a finding that the accident occurred
because of the negligence on the part of the 1 st respondent and that
respondents 1 to 3 are jointly and severally liable to pay compensation.
The Tribunal awarded a total compensation of Rs.2,92,19,000/- to the
petitioners.
5. Heard Sri. George Cherian, the learned Senior counsel for the
appellant insurance company and Sri. A. N. Santhosh, the learned
counsel for the appellant claim petitioners.
6. According to the claim petitioners, the deceased Shiby
Abraham was aged 34 years and working in Australia as a registered
Nurse at the time of the accident. In the claim petition, Rs.4,75,000/-
was claimed as monthly income of the deceased. Based on Exhibit A19
employment contract and Exhibit A31 bank statement, the Tribunal
found that the deceased was drawing $2872/- in every two weeks and I
find no reason to interfere with the said finding of the Tribunal.
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7. The learned counsel for the appellant insurance company
pointed out that the Tribunal, after arriving at a finding that the
deceased was drawing $2872 approximately every two weeks, fixed her
monthly salary as $6000/- and the same is not correct. I find that the
salary for four weeks can only be $5744.
8. The Tribunal calculated the exchange rate of Australian dollar
as on the date of occurrence. But, the decision of the Honourable
Supreme Court in Shyam Prasad Nagalla v. Andhra Pradesh State
Board Transport Corporation [2025 KHC Online 7117] shows that
compensation should be calculated at the exchange rate prevailing on
the date of filing of the petition. The learned counsel for the
appellants/claim petitioners filed an affidavit stating that the value of
Australian dollar as on the date of filing of the petition ie., on
19.10.2013 was Rs.59.23 and the same is not disputed by the other
side.
9. It is also not disputed that the deceased was liable to pay tax at
the rate of 32.5C for the amount exceeding $37,001. The total annual
income of the deceased will come to $68928/- and the tax payable will
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be $13948. After deducting the tax payable, the annual income of the
deceased will be $54,980/-. When the same is converted to Indian
rupees, the amount will be Rs.32,56,465/- (54980 x 59.23).
10. The Tribunal has made an addition of 40% towards future
prospects as per the decision of the Honourable Supreme Court in
National Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680].
The learned counsel for the appellant/claim petitioners pointed out that
as per the decision of the Honourable Supreme Court in Sarla Verma
(supra), the multiplier applicable for persons aged between 31-35 years
is 16 and the Tribunal applied the multiplier of '10' for the reason that if
compensation is calculated by adopting the multiplier of 16, the amount
will be huge and the said reasoning of the Tribunal is not legally
sustainable.
11. It is well settled that the multiplier is to be selected on the
basis of the age of the deceased at the time of the accident and
therefore, I find that the Tribunal is not justified in not following the
principles laid down by the Honourable Supreme Court in Sarla Varma
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v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] for
selecting the multiplier and that the correct multiplier applicable is 16.
12. The learned counsel for the insurance company cited the
decision of the Honourable Supreme Court in United India Insurance
Co. Ltd. vs Satinder Kaur @ Satwinder Kaur and Ors. [2020 (3)
KHC 760 (SC)], wherein the Honourable Supreme Court deducted 50%
of the income of the deceased as the deceased was living in a foreign
country. In the said decision, the Honourable Supreme Court held thus:
"9.2. Even though in Sarla Verma (supra), it was held that the
deduction towards personal and living expenses should be 1/4th, if the
number of dependant family members is four, in the present case, we
feel that 50% of the income of the deceased would be required to be
deducted, since he was living in a foreign country.
The deceased had to maintain an establishment there, and incur
expenditure for the same in commensurate with the high cost of living
in a foreign country. Therefore, we are of the view that the High
Court rightly deducted 50% of his income towards personal and living
expenses."
13. Therefore, considering the fact that the deceased was working
in Australia and taking note of the personal and living expenses of the
deceased in Australia, I find that 50% of the income can be deducted
towards personal and living expenses of the deceased. When the loss of
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dependency is calculated as per the revised criteria, the same would
come to Rs.3,64,72,408/- [(32,56,465 + 40%) x 16 x ½]. The Tribunal
had already granted Rs.2,91,06,000/- under this head. Therefore, an
additional compensation of Rs.73,66,408/- is granted to the
appellants/claim petitioners under this head.
14. The Tribunal granted the compensation under conventional
heads by following the principles laid down by the Honourable Supreme
Court in Pranay Sethi (supra) and I find that the compensation granted
by the Tribunal under other heads are reasonable and requires no
interference.
16. Accordingly, the appellants are entitled to the enhanced
compensation as given below:
Additional
Compensation amount granted
Particulars awarded by the by this Court
Tribunal (Rs.) (Rs.)
Loss of dependency 2,91,06,000/- 73,66,408/-
Total enhanced compensation
73,66,408/-
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15. In the result, M. A. C. A No. 1287 of 2019 is dismissed and M.
A. C. A. No. 2853 of 2019 is allowed and a total amount of
Rs.73,66,408/- (Rupees Seventy Three Lakhs Sixty Six Thousand Four
Hundred and Eight only) is awarded as enhanced compensation. The
said amount shall carry interest at the rate of 7% per annum from the
date of the application till realization (excluding the period of delay of
91 days in filing the appeal). The appellants/claim petitioners would also
be entitled to proportionate costs in the case. The claimants shall
furnish the details of the bank account to the insurance company for
transfer of the amount.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
